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Climate Change Alert - A Colder Immigration Front Has Come

Since President Trump took office, there have been significant changes on the immigration front.  In addition to the termination and curtailing of several humanitarian-based programs such as DACA and the Temporary Protected Status for El Salvador, Haiti, Nicaragua and Sudan, the Administration has also focused on measures severely affecting the employment-based immigration process. 

The increased scrutiny on nonimmigrant petitions for skilled workers became obvious when President Trump singled out the H-1B visa program in his executive order 13788 and directed federal agencies to suggest reforms to help ensure that H-1B visas were awarded to the “most-skilled and highest-paid beneficiaries.” In response, the US Citizenship and Immigration Services (USCIS) changed long-established policies by issuing memorandums in the eve of the 2017 and 2018 H-1B filing season, leaving no time for employers to adjust and triggering an avalanche of requests for further evidence (RFE). 

The first freeze in the new immigration season affected petitions for computer programmers and computer-related positions, as USCIS questioned the specialty occupation character of these positions, whether they necessarily require bachelor degree or equivalent in order to satisfy the H-1B requirement.  USCIS rescinded its prior guidance on this issue pointing to the Department of Labor’s Occupational Outlook Handbook (OOH) where it is indicated that entry-level computer programmers may be hired with merely an associate degree.  While the OOH was never intended to be used as legal authority and its primarily goal is to educate the public about occupational classifications and trends, H-1B employers had to respond to this type of challenges to the specialty occupation character of the position by compiling massive documentation of their standard requirements for the positon, the standard requirements in the industry, and often paying for expert opinions.

H-1B adjudicators were also directed to consider the salary level in determining whether the petition met the requirement for specialty occupation.  As a result, petitions with Level 1 prevailing wage for entry-level positions were challenged on the basis that the proffered position is not particularly complex, specialized, or unique to satisfy the requirements for specialty occupation.  This flawed reasoning meant that beneficiaries with just a bachelor’s degree and no experience could not qualify for H-1B.  The USCIS’ unfounded use of the salary level as some sort of test for ‘specialty occupation’ caused H-1B employers to struggle for months responding to voluminous RFEs.   

This H-1B filing season in 2018, the USCIS continued the trend - just three weeks before the filing deadline, the premium processing service for new H-1B was blocked.  Also, claiming that program violations are more likely to occur in third-party work situations, the USCIS imposed a heightened evidentiary requirements for all H-1B petitions involving third-party worksites.  While employers who place workers at third-party worksites have been required even previously to document the employment relationship with the beneficiary, they must now be prepared to present contracts, work orders, itineraries, and letters from authorized company representatives attesting to the nature and the duration of the third-party project.  Further, when seeking an extension, they must show evidence retroactively confirming the employment relationship for the previous approval period. 

Other non-immigrant employment visa categories were also affected by the frigid climate change.  Last fall, USCIS issued a policy memorandum restricting the TN classification for economists to positions involving a narrow range of economic analysis duties.  As a result, employers could no longer use the TN classification for a range of other professions related to economics, such as those performed by financial analysts, market research analysts, and marketing specialists.

The freeze may also reach the employment authorization program for H-4 foreign spouses to H-1B workers whose green card case has progressed to a certain stage. In a rule expected to be published in June 2018, the administration is considering eliminating this program.  The reality is that most H-4 visa holders are women.  While they may have attended college and nurtured career aspirations, these women would be more easily forced back into a domestic role, regardless of the record low unemployment rate. 

In a statement of regulatory priorities issued in the Fall of 2017, the administration has also made clear its intent to terminate the program under the “International Entrepreneur Rule” that would allow for consideration of parole into the United States, on case-by-case basis, of certain inventors, researchers, and entrepreneurs who had established a U.S. start-up entity, and who had been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.

Apart from the symbolic gesture of marginalizing customer service in its mission statement, the USCIS has taken very real steps in immigration climate change. With increased backlog for processing applications for employment authorization documents (EAD) beyond the 90-days, restrictions on the interview waiver program for non-immigrant visa applicants at consulate offices, in-person interviews of all employment-based green card applicants, limiting access to InfoPass appointments, and many other initiatives, the USCIS has imposed significant hurdles for employers seeking skilled and talented foreign workers.